Dinet v. Pfirshing

Mr. Justice Sheldon delivered the opinion of the Court: August 7, 1872, the Criminal Court of Cook County, at the conclusion of a litigation in chancery in the suit of Elizabeth Dinet v. Joseph Dinet,’ for a divorce, made an order in the case, as to solicitor’s fees, as follows: “ The court does, by consent, ordér, adjudge, and decree that Joseph Dinet, the defendant, on or before the first day of October, A. D. 1872, pay to Joseph Pfirshing and Francis Adams, the complainant’s solicitors, the sum of eight hundred and twenty-five (825) dollars, for services rendered to the said complainant, as her solicitors in .this .cause, since the restoration of the same and the records thereof, heretofore destroyed by fire ; and that said defendant pay to Joseph Pfirshing, the complainant’s solicitor, on or before the first day of November, A. D. 1872, the sum of two hundred and eighty-five (285) dollars for services rendered to the complainant, as her solicitor in this cause, from the time of the rendition of the verdict by the jury herein, until the time of the restoration of the pleadings and record of the cause as aforesaid. And that said defendant, on or before the first day of May, 1873,- pay to Joseph Pfirshing, as surviving partner of Daniel Driscoll, deceased, the sum of fifteen hundred and' twenty (1,520) dollars, for services rendered to the complainant by said Driscoll & Pfirshing, as her solicitors in this cause, from the commencement of the same until the time of the rendition of the verdict of the jury herein.” Joseph Dinet has since paid $720 on account of the $1,520 named in the last clause above. This was an action of debt brought by Joseph' Pfirshing against Joseph Dinet upon such last clause of the order, for the recovery of $800, as for the balance claimed to be remaining unpaid of the said sum of $1,520. The plaintiff recovered in the court below, and the defendant appealed. There had been'two previous interlocutory orders for the payment to Driscoll & Pfirshing of $800 for solicitors’ fees — one on March 8, 1870, for $300; the other on February 4, 1871, for $500. These had been paid previous to tlie entry of the above decree, and Dinet pleaded, in the present suit, payment, setting out the facts. A demurrer to the plea was sustained; so that the sole question presented by the record is upon the construction of the last clause of the above decretal order—whether it was the meaning that the sum of $1,520 should be the total of compensation to Driscoll & Pfirshing for all services pei’formed by them in the suit, or whether that sum of $1,520 was in addition to the $800 allowed before the trial of the divorce case. Since the rendition of the judgment in the court below, this court has decided this question, adopting the former construction — that the $1,520 was for all the services of Driscoll & Pfirshing performed in the suit, and embraced the $800 previously paid. The case is that of Dinet v. Eigenmann, Administrator, 80 Ill. 274. The question there came up on appeal from an order of the court below awarding execution upon the decree for the sum of $800, as the residue unpaid of the allowance of $1,520, this court deciding, under the construction it adopted, that there was nothing remaining unpaid on the decree, and that the court below erred in ordering execution to issue for the collection of any sum, reversing the order awarding execution. It is true, as appellee’s counsel urges, that the decision in that case is not a bar or estoppel in this suit, as the parties are not the same; and we have reconsidered our former construction of this decree in the light of the forcible argument which has been presented against it. The proper construction of the decree is not clear; we may have misconstrued it; but we do not feel satisfied that we did, and can not do otherwise than to adhere to the construction we before put upon it. We do not consider, as urged by appellee’s counsel, that our decision places the court in the wrongful position of admitting a pre-existing defense in an action upon a judgment. It is so contended, and the argument would assimilate this to the case of a judgment rendered in a suit brought upon a demand, and in an action upon the judgment admitting in defense payments made on the demand previous to the judgment on it. We do not view it in any such light, but regard it merely as a question of construction — what is the meaning of this order of allowance of attorney’s fees made in a divorce suit. After the case was pending in this court on the appeal, appellant filed in this court a plea puis darrein continuance, setting up the decision of this court referred to. Afterward, on motion of appellee, the plea was stricken from the files. Subsequently, appellee entered his motion to take judgment because of the plea puis darrein continuance having been filed and stricken from the files. It is insisted that as it is the rule that the plea puis darrein continuance waives all previous pleas, it must follow that the filing of such plea in this court operates as a waiver of the errors assigned,, and that there is now nothing left for the court to act upon ; and that all it can do is to pronounce judgment in favor of the appellee. We deem it sufficient to remark, in answer, that, the plea having been on motion of appellee stricken from the files, it must be regarded as not in the case, and we consider the effect to be as if it had never been filed. We are of opinion the court below erred in sustaining the demurrer to the pleas of payment, and the judgment is reversed and the cause remanded. Judgment reversed.